In the preceding post, I’ve argued that Hobby Lobby might well prevail on the claim that the employer mandate substantially burdens its owners’ religious practice. This means that Hobby Lobby would be presumptively entitled to an exemption under RFRA, though that presumption could be rebutted if denying the exemption is the least restrictive means of serving a compelling government interest. (I’ll turn to that tomorrow.)

If the argument is right, then not only is Hobby Lobby (alongside similar employers) not entitled to a RFRA exemption — it couldn’t get an exemption even if Congress or the Administration were eager to create such an exemption. Thus, for purposes of this post I will assume that Hobby Lobby and similar employers are statutorily given this exemption, and I will ask whether that would be constitutional. I won’t ask whether RFRA calls for the exemption; that is a story for tomorrow.

1. To begin with, let’s be precise about the effect of an employer mandate exemption would have on employee: If the employees want certain implantation-preventing contraceptives, they would have to buy them with their own funds, rather than getting them for free through an employer-provided health insurance plan. They would thus be in essentially the same legal position […]

1. Some people have argued that RFRA shouldn’t apply in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t required to administer them, or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. (Note thats this argument would apply to employers who are sole proprietors as well as to employers who own the business through a corporation, so I largely won’t focus on the corporation point in this post; for more on that, see this post. [UPDATE: I did add a few sentences to the post below that touch briefly on the corporation / substantial burden interaction, but the bulk of the corporation discussion remains in the earlier post.])

And this argument would be perfectly valid if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and was asked, “Do you think that it is religiously wrong for you to provide this insurance?,” and the employer says, “no, that’s fine, only using the contraceptives is sinful,” then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

True, people disagree about when complicity stops. Some people think that race discrimination […]

Yesterday, the University of Notre Dame re-filed its lawsuit challenging the contraception mandate “accommodation” offered to religious institutions by the Department of Health and Human Services. Notre Dame had filed suit before, but that suit was dismissed as the Administration had announced plans to adopt an accommodation for objecting religious institutions. The WSJ reports on the suit here.

As I noted in prior posts (here and here), the Administration had a difficult time finding a way to accommodate the objections to the contraception mandate of religious institutions, including universities and social service organizations, that are not themselves houses of worship or their auxiliaries. The accommodation ultimately offered by HHS is that if a religious institution objects to paying for insurance coverage that covers methods of contraception that are contrary to the teachings of that religion, the institution may certify that it objects, and then the institution’s insurer will provide a separate contraception-only insurance policy. The problem for an institution like Notre Dame, as detailed in its complaint, is that it self-insures. (Many large institutions self-insure, and many religious ones do so, in part, to avoid state-level contraception mandates.) To address this, the final accommodation shifted the obligation to the third-party administrator of the insurance plan. Assuming this shift of obligation is even legal (as the administrator is not acting as an insurer, and has to provide the contraception at no cost to the insured), Notre Dame still objects because the provision of contraception is still tied to Notre Dame’s decision to provide insurance in the first place and Notre Dame’s decision to certify that it is an objecting institution results in the designation of the third-party administrator as the provider of contraception. According to Notre Dame, this requires the university to “become entangled with and facilitate” […]

Much of the recent debate about Hobby Lobby and similar cases has focused on whether RFRA allows exemptions from burdens imposed on corporations. As before, let me approach this question by considering some hypotheticals that don’t invoke the hot political passions generated by the employer mandate, or by questions related to abortion. In all of them, assume that we are in a jurisdiction in which the federal Religious Freedom Restoration Act or one of its state analogs applies.

Let us focus on the three examples mentioned in the preceding post, but tied to closely held corporations. Imagine that a newly enacted law requires all markets to sell state lottery tickets. and say that a particular market is owned by a corporation that is wholly owned by members of a United Methodist family, who believe it’s against their religion for any business that they own, directly or indirectly, to sell lottery tickets. Or imagine the same as to a law requiring all markets to sell beer and wine, and owners of a Methodist or a Muslim family corporation object to this because they think selling wine is sinful. Or say that a law requires all gas stations to operate seven days a week, and say that a particular gas station is owned by a corporation owned by members of a Jewish or Seventh-Day Adventist family, who believe that it is wrong for any business that they own to operate on the Sabbath.

All the store-owning corporations, together with the individual owners of those corporations, sue, seeking an exemption from the lottery ticket mandate, alcohol mandate, or the seven-day-a-week mandate. Should all these claims be rejected, on the theory that (1) corporations lack RFRA rights, and (2) the owners of the […]

Let us turn now more closely to the issues raised by Hobby Lobby, but take them one at a time. The first issue is: Should religious exemption rights even be seen as applicable to commercial activity, or should they be limited to objectors’ noncommercial activities (such as Amish parents’ not sending their children to school past age 14, or people’s consumption of hallucinogens for religious purposes)? I think the answer is that the Court shouldn’t, and likely won’t, recognize any “noncommercial activities” limitation on the Religious Freedom Restoration Act.

1. To begin with, let’s consider some hypotheticals that don’t invoke the hot political passions generated by the employer mandate, or by questions related to abortion. In all of them, assume that we are in a jurisdiction in which the federal Religious Freedom Restoration Act or one of its state analogs applies. And assume, for now, that the store is owned by the owner directly, rather than by a corporation that is owned by the person. (I’ll turn to the corporation question in the next post.)

Imagine that a newly enacted law requires all markets to sell state lottery tickets — an attempt by the legislature to raise more money for the state. And say that a particular market is owned by a United Methodist who believes it’s against his religion for any business that he owns to sell lottery tickets. (Some Mormons and Muslims also believe gambling is sinful.)

Or imagine the same as to a law requiring all markets to sell beer and wine — though I realize this is probably politically less likely — and a Methodist or a Muslim market owner objects to this because he thinks selling wine is sinful. Or say that a […]

The RFRA religious exemption regime may seem less exemption-friendly than the Sherbert/Yoder-era constitutional exemption regime, precisely because it is only statutory. If Congress (or, for a state RFRA, a state legislature) dislikes an exemption that courts have recognized, it can pass a new statute rejecting that exemption. Congress can even block such exemptions proactively, for instance by saying up front that some statutes won’t be subject to religious exemptions. (Some state legislatures have indeed done that.)

The 1993 Congress could not bind future Congresses — only a constitutional amendment can do that — and it didn’t purport to try. RFRA makes clear that future statutes could be excluded from RFRA’s scope if “such law explicitly excludes such application by reference to [RFRA].” It also seems likely that they would also be excluded if “the plain import of a later statute directly conflicts with an earlier statute” (though courts are reluctant to find such direct conflicts because of the “powerful presumption against implied repeals”). As a result, exemptions recognized under RFRA, unlike exemptions recognized under the Free Exercise Clause in the Sherbert/Yoder era, are at the mercy of the legislature.

It’s possible, though, that the RFRA regime may sometimes prove to be more religious-exemption-friendly than the old constitutional exemption regime, precisely because it is statutory. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. Even a judge who thinks that granting a religious exemption from (say) a peyote ban might not cause that much harm, and who thinks the legislature might not have considered this particular question when it banned peyote, may be hesitant to tie the legislators’ hands by declaring that […]

The previous post in this series has explained what RFRA is, and what general rules it sets forth. For nearly all the remaining posts, I’ll take RFRA as given, and not deal with the broader question of whether having such a statute is a good idea. (That’s a perfectly sensible question to ask, but it’s not one that the Court will have to confront in Hobby Lobby.) Still, I think it’s helpful to think a bit about what the main arguments for RFRA are — whether you accept them or not — since this may help us understand how the Court will interpret RFRA.

RFRA begins with the findings that, “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution,” and “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” To this point, this might sound like a justification for massive protection. Does your religion require you not to pay any taxes to what you see as a corrupt, un-Godly government? Well, tax laws may burden this religious exercise as surely as laws intended to discriminate against your religion, and, hey, your free exercise of religion is an “unalienable right.”

But of course our legal system has never accepted any such view of free exercise. Likewise if your religion requires you to make pilgrimages to a visitation of the Virgin Mary on my property, or to take my property and give it to the poor, or to kill me for blaspheming, or to do many other things that the legal system forbids with no regard for religious objections.

Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?

Until about 1960 (more or less), the rule was what one might call the statute-by-statute exemption model — religious objectors got exemptions if and only if the statute provided for one, as, for instance, draft law historically had. Judges got into the act only insofar as they created common-law exemptions from judge-made common-law rules, and these exemptions were trumpable by statute. The clergy-penitent privilege, which is an exception from the duty to testify, was one example.

But then in Braunfeld v. Brown (1961) the Supreme Court seemed to suggest that the Free Exercise Clause might sometimes constitutionally mandate exemptions. And in Sherbert v. Verner (1963), the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption. Wisconsin v. Yoder (1972) reaffirmed this, and the period from 1963 to 1990 is […]

Last week, the Supreme Court agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. There are a lot of moving parts in the legal analysis of those cases, so I thought I’d blog several posts about them, one on each of the main issues in the case. The two cases will be consolidated, so I’ll just speak about “Hobby Lobby,” rather than mentioning both case names. I hope the posts will be useful both for people who want to read them all this week, and for future reference when the questions get discussed again in the coming months, as Hobby Lobby is briefed, argued, and decided.

First, a general roadmap. Hobby Lobby and Conestoga Wood are closely held, family-owned corporations. The owners of the corporations believe for religious reasons that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. (To my knowledge, they are unanimous on this within each family.)

They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover those contraceptives that prevent implantation. They are thus not opposed to all contraception methods — their beliefs are essentially a sort of life-begins-at-conception Protestant, not Catholic — but they are opposed to some.

They thus claim that the federal Religious Freedom Restoration Act of 1993 entitles them to an exemption from the contraceptive insurance requirement imposed by the Affordable Care Act and its implementing regulations. (Hobby Lobby also argues that the Free Exercise Clause also entitles them to such an exemption, but I won’t focus on this argument.) Under that law,

This morning the Supreme Court agreed to hear two cases in which for-profit corporations are challenging the so-called “contraception mandate” under which employer-provided group health insurance plans are required to fully cover all FDA approved forms of contraception and sterilization. The two cases accepted for review are Sebelius v. Hobby Lobby Stores, Inc., in which the U.S. Court of Appeals for the Tenth Circuit ruled for the employer, and Conestoga Wood Specialties Corp. v. Sebelius in which the U.S. Court of Appeals for the Third Circuit went the other way. Both appeals principally involve free exercise of religion claims under the Religious Freedom Restoration Act (RFRA).

The Tenth and Third Circuits are not the only appellate courts to have confronted the underlying RFRA claims, including the question whether a corporation may assert free exercise claims under RFRA. The U.S. Court of Appeals for the Sixth Circuit rejected a corporation’s free exercise claim in Autocam Corp. v. Sebelius. The U.S. Court of Appeals for the Seventh Circuit held for the corporate plaintiffs in Korte v. Sebeliusand the U.S. Court of Appeals for the D.C. Circuit ruled against the mandate, on behalf of the owners of a closely held corporation but not the corporation itself, in Gilardi v. U.S. Department of Health and Human Services. […]

“The process of legalization of Islam has not been approved by the Ministry of Justice and Human Rights, their mosques would be closed until further notice,” Rosa Cruz e Silva, the Angolan Minister of Culture, was quoted by Agence Ecofin on Friday, November 22….

“This is the final end of Islamic influence in our country,” President José Eduardo dos Santos was quoted by Osun Defender newspaper on Sunday, November 24.

If any readers have more details confirming or denying this, or confirming whether the French language sources are consistent with the others and whether they are credible, please let me know. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. […]

Last week I wrote about the response of a group of us (Andy Koppelman, Doug NeJaime, Ira Lupu, William Marshall, and me) to calls for broad religious-liberty exemptions in laws authorizing same-sex marriage. Specifically in the context of the proposed marriage bill in Illinois, which has since passed, we argued that the proposals from several religious-liberty scholars urged for several years now in state legislatures around the country are, in short, overblown and overdrawn. It is the first time a group of scholars has formally and publicly responded to what some legislators might have thought was a solid scholarly consensus behind the idea that same-sex marriage creates a distinct crisis for religious liberty.

Several of the scholars favoring broad exemptions have now replied to our critcisms in the form of a blog post at Mirror of Justice, the Catholic legal blog, although the group is not limited to Catholic opponents of same-sex marriage. The replying scholars are Tom Berg, Carl Esbeck, Edward Gaffney, Rick Garnett, Doug Laycock, Bruce Ledewitz, Christopher Lund, Michael Perry, and Robin Fretwell Wilson. Some of the differences between the two groups of scholars seem to involve a venue question of whether marriage laws — as opposed to antidiscrimination laws — are the appropriate place for clarifying existing religious-liberty protections. Some of the differences are deeper, involving what should be recognized as an appropriate religious-conscience exemption from generally applicable antidiscrimination laws. In any event, I recommend that readers interested in this dispute among legal scholars about religious liberty and same-sex marriage read this latest installment from those who favor broad exemptions. […]

The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres. The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation. (See, for example, a link to some of their letters here.)

There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty. (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill. That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.

That starts to change as of today in Illinois. Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.” The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me. The letter was coordinated with the […]

A Catholic priest and a religious military veteran are suing the Department of Defense over the federal government shutdown, BLT reports. According to the complaint, they allege that the federal government has violated their First Amendment rights by preventing the priest from performing, and the veteran from receiving, religious services at military facilities due to the federal shutdown. The priest claims he would provide these services free of charge during the shutdown, but that such conduct is barred by regulations implementing the Anti-Deficiency Act.

I am somewhat skeptical of the underlying constitutional claim, though the associated Religious Freedom Restoration Act (RFRA) claim may have more strength. Barring the use of federal facilities for religious purposes while they are shut down would not seem to violate the Free Exercise clause under current doctrine. If a facility is shut down, it’s shut down. There is no First Amendment exception, for speech or religion (contrary to the claims of the National Park Service). RFRA, however, imposes a greater burden on the federal government to accommodate religious practice and thus could preclude federal regulations from barring a priest from continuing to minister to soldiers and veterans at military facilities during a shutdown. […]

While I have recently criticized European hypocrisy in matters related to Jews, here I find little to object to as a formal matter. European nations are well within their rights to ban such practices, despite the significant disruption it creates for religious minorities.

If democratically adopted, such bans would mean that a significant segment of European society thinks, as the Council said, that circumcision represents a barbaric mutilation of a child. That is a legitimate position of conscience; indeed, it is a quasi-religious belief itself, in that it is based on deeply held moral views about essentially unverifiable matters. As a believer in the covenant of Abraham I do not share these views, but they are far from absurd if one does not accept the validity of the covenant.

A majority has a legitimate right and interest to conduct society according to its moral views when articulated in laws that are generally and equally applied. Government is in part an instrument for the expression and transmission of values, and all legislation takes explicit or implicit moral positions. If the values that stand behind generally applicable legislation conflict with the views of religious or ethnic minorities, the majority should not be neutered or have its values annulled to protect the sensibilities of minorities who hold different views.

There are some who think the law is discriminatory, aimed at the religious groups who practice circumcision. It seems to me that circumcision, in a non-religious context, is common […]